The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-04-22
THE MICHIELS CASE.
The Plaintiff NOn-SuHted and the
jury Discharged.


past two days came to termination yes
terday, the plaintiff being non-suited.
The case arose out of the fire in plaintiffs
store on August 4, 1886, which damaged
the stock He claimed $4,000 the full
amount of the insurance on stock. The
claim was contested by Mr.. G. o. Berger,
agent for the Hartford Company. The
following jury was empanelled: w. w.
Hall, E. Marshall, NJ. Green, E. r..
Hendry, II. j. Agnew, George Strate-
meyer, H. Lewis, c. Mccarthy, Major
Hills, A Nj. Mellis, H. A. Parmalee and
E. L. Marshall
On Wednesday, after the evidence was
all in for plaintiff, Mr.. f. NJ. Hatch, of
counsel for the defendant, moved that
the plaintiff be non-suited on account of
the showing that the insured property
had been transferred without the con-
sent OF the insurance company, the pol
icy of the Hartford Insurance Co. eX-
pressly STIMULATING that any transfer or
assignment by the insured without con-
sent of the company made the policy
null and void. In support of his motion
the attorney quoted several authorities.
Mr. Charles Creighton contested the
motion on behalf of the plaintiff, arguing
that the transfers meant in the policies
must be actual and recorded transfers,
whereas the one made by Michiels was
but temporary and not in any way such
as would tend to invalidate the insur-
ance. The weight of authorities was
against the motion, and counsel quoted
in support from 2 Pickering, p. 249,
Howard's Practice Reports, volumes 81,
PIP. 341-278; II Aliens Report, p. 381,
and others.
Mr.. w. A Whiting also supported the
position taken by Mr.. Creighton.
His Honor Justice McCully yesterday
morning gave the following decision on
the motion for a non-suit:
The question argued and submitted to
the Court is, whether non-suit should be
sustained on account of an assignment of
the property having been made, by bill OF
sale given to Mr. Whiting and the policy
(of insurance. thereby rendered void. As
against the prlma facie conclusion that
forfeiture has been made by a change of
title, the counsel for the plaintiff adduce
authorities to the effect that where an in
surable interest remains in the insured he
may recover although he may not have
mortgaged his entire interest, or even have
assigned it in trust or conditionally.
His Honor quoted several authorities
therefor, but said these cases did not cite
the clauses in the policy, or any clause cor
responding in terms on import with those
which are expressed in the policy in the
present case. An argument based upon
the general principle that the company is
liable so long as an insurable interest or
an equitable interest remains in the in
surer, would not apply to the case of
contract including express provisions for
forfeiture in the event of any transfer
made without the consent of the COM
pany and endorsement on the policy of an
assignment of the policy following the
signment of the property.
1t would appear that modern insurance
policies and the one in this case had ex-
pressly guarded against the doctrine of
PENDANT company's policy, on which are
based the motion for nOn-suit are as fol-
lows: IF any change takes place
in the title or possession of the property,
whether by sale, transfer, conveyance,
legal process, etc, or if the as
sured is not the sole, absolute and uncon-
ditional owner of the property insured,
then, and in every such case, this
policy shall be void"
understand, His Honor said, that the
second condition quoted expresses the
state of facts which must exist when the
policy is issued. Now, has any change
taken place in the title by the execution of
the bill of sale to w. A. Whiting2 In its
terms it is an absolute conveyance to him
of the property covered by the insurance
GivingIt the utmost favorable construction
asked for by the plaintiff, that it is a condi-
tional sale, an unrecorded chattel mort
gage, if the instrument has any effect and
is not mere futlity, it must be held that
the title of Mr.. Michiels was changed there
by. He was no longer the unconditional
owner. Mr.. Whiting held title upon
which he could make a valid sale to third
party, having no notice of any equities in
the case The terms used in the clause
are very comprehensive. Any change in
the title, by sale or transfer In the
Michigan case cited, the words transfer"
or "change" of title are more comprehen-
sive than the word "sale." A sale is upon
a valuable consideration, but there may
be transfer or change of title without
sale.
Upon the most favorable construction to
be given to this bill of sale the plaintiff has
violated an express condition of his con-
tract and thereby released the defendant.
The motion of Hon-suit is sustained.
Mr.. Creighton, for the plaintiff, noted
exceptions to the ruling.
His Honor then discharged the jury from
further consideration of the case.
Counsel gave notice to the Court that
the two other cases of the plaintiff against
insurance companies would await the pro-
ceedings on appeal.
Solar Phenomenon.